Canada has not had an entirely disassociated relationship with religion, from its inception.

The British monarch, who is the symbolic head of Canada, also holds the title of Supreme Governor of the Church of England, the mother church of the international Anglican Communion. The 2011 census estimates over 1.5 million Canadians, or 5% of the population, are Anglican today, making this relationship with the church not entirely insignificant.

The monarch’s Oath of Accession includes a promise to “maintain and preserve the Protestant Religion and Presbyterian Church Government,” meaning that religious plurality is also built into this symbolic role given his or her relationship with the Church of Scotland.

The Canadian constitution also notes special protections for Catholic minorities under s. 93 of the BNA Act, 1867.

34 …in order to establish that his or her freedom of religion has been infringed, the claimant must demonstrate

(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and

(2) that the impugned conduct of a third party interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief.

Because the State should not be in the position of becoming the arbiter of religious dogma, the Court in Amselem indicated at paras 49-50 that the Charter should protect any sincerely held belief. Conducting an inquiry into the profoundly personal beliefs of an individual would be inconsistent with the principles behind s. 2(a).

Of course even this approach has its limitations, as the very notion of traditional religions is based on largely Western European constructs. In Ontario, the Human Rights Code protects a notion of “creed,” which has been interpreted as broader than simply religion. The Commission’s 2015 policy document on this highlights the challenge with using traditional notions of faith to understand discrimination,

Indigenous peoples in Ontario continue to face significant barriers practicing Ontario’s longest standing religious and spiritual traditions. This has sometimes been due to a lack of understanding of Indigenous Spirituality as a whole way of life, and a corresponding failure to recognize and accommodate Indigenous Spirituality in its diverse forms and expressions. It has also been shaped by the ongoing impact of the colonial past on the present.

The Court’s recent decision in Ktunaxa Nation v. British Columbia struggles with the complicated issue of how to deal with State actions and its potential interference with indigenous beliefs. The decision provides important insight into how the Court interprets the scope of religious freedom.

The case deals with a ski resort development proposed ski resort in south-eastern B.C., close to the Alberta border and just west of Calgary. The British Columbia Minister of Forests, Lands and Natural Resource Operations provided approval for this resort, following consultations with the Ktunaxa people, whose traditional territories can be found throughout this general area. To the Ktunaxa people, this place was known as Qat’muk, a place of spiritual significance due to a population of grizzly bears and what they sincerely believed to be the Grizzly Bear Spirit, who they believed would leave the area if the ski resort was to proceed.

The Ktunaxa brought a judicial review of the Minister’s approval on the basis that it would violate their s. 2(a) Charter rights, and that there was inadequate consultation and accommodation by the Crown under s. 35 of the Constitution Act, 1982. The chambers judge dismissed the petition, and the Court of Appeal dismissed the appeal.

The majority of the Court, led by McLachlin C.J. and Rowe J., held that their 2(a) rights were not violated because their freedom to hold their beliefs or manifest them were not infringed by the Minister’s decision. They did so while still recognizing the special relationship of the Courts with Indigenous peoples,

[10] We arrive at these conclusions cognizant of the importance of protecting Indigenous religious beliefs and practices, and the place of such protection in achieving reconciliation between Indigenous peoples and non-Indigenous communities.

The majority referred to international treatise on the freedom of religion, such as Article 18 of the Universal Declaration of Human Rights and art. 18(1) of the International Covenant on Civil and Political Rights, to emphasize that freedom of religion is not simply the right to adopt a belief, but to also manifest it. Although there was no dispute over the sincerity of the belief, the majority rejected the claim that the state conduct interfered with the ability to act in accordance with that practice or belief,

[71] …The state’s duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship. We have been directed to no authority that supports the proposition that s. 2 (a) protects the latter, rather than individuals’ liberty to hold a belief and to manifest that belief. Section 2 (a) protects the freedom to pursue practices, like the wearing of a kirpan in Multani or refusing to be photographed in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567. And s. 2(a) protects the right to freely hold the religious beliefs that motivate such practices. In this case, however, the appellants are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. That claim is beyond the scope of s. 2 (a).

[72] The extension of s. 2(a) proposed by the Ktunaxa would put deeply held personal beliefs under judicial scrutiny. Adjudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs. In Amselem, this Court chose to protect any sincerely held belief rather than examining the specific merits of religious beliefs…

[73] The Ktunaxa argue that the Big M Drug Mart definition of the s. 2(a) guarantee has been subsequently enriched by an understanding that freedom of religion has a communal aspect, and that the state cannot act in a way that constrains or destroys the communal dimension of a religion. Grizzly Bear Spirit’s continued occupation of Qat’muk is essential to the communal aspect of Ktunaxa religious beliefs and practices, they assert. State action that drives Grizzly Bear Spirit from Qat’muk will, the Ktunaxa say, “constrain” or “interfere” with — indeed destroy — the communal aspect of s. 2(a) protection.

[74] The difficulty with this argument is that the communal aspect of the claim is also confined to the scope of freedom of religion under s. 2(a). It is true that freedom of religion under s. 2(a) has a communal aspect: Loyola; Hutterian Brethren, at para. 89; Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650. But the communal aspects of freedom of religion do not, and should not, extend s. 2(a)’s protection beyond the freedom to have beliefs and the freedom to manifest them.

[emphasis added]

The minority, led by Moldaver J., disagreed that s. 2(a) was not violated, as this right should be interpreted in a broad and purposive manner,

[117] …In my view, the Ktunaxa’s right to religious freedom was infringed by the Minister’s decision to approve the development of the ski resort proposed by the respondent Glacier Resorts Ltd. The Ktunaxa hold as sacred several sites within their traditional lands, and they revere multiple spirits in their religion. The Ktunaxa believe that a very important spirit in their religious tradition, Grizzly Bear Spirit, inhabits Qat’muk, a body of sacred land that lies at the heart of the proposed ski resort. The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless.

…

[124] …In my view, where a person’s religious belief no longer provides spiritual fulfillment, or where the person’s religious practice no longer allows him or her to foster a connection with the divine, that person cannot act in accordance with his or her religious beliefs or practices, as they have lost all religious significance. Though an individual could still publicly profess a specific belief, or act out a given ritual, it would hold no religious significance for him or her.

[emphasis added]

The Court in Loyola High School v. Quebecemphasized at paras 64-67 that freedom of religion also includes the ability to pass on beliefs and practices to future generations, including the transmission of faith to children and the ability to guide children with religious upbringing. The state interference here had a unique impact on the adherents. Justice Moldaver distinguished the type of belief here from the type of religious beliefs often reviewed in previous 2(a) jurisprudence,

[127] This kind of state interference is a reality where individuals find spiritual fulfillment through their connection to the physical world. The connection to the physical world, specifically to land, is a central feature of Indigenous religions. Indeed, as M.L. Ross explains, “First Nations spirituality and religion are rooted in the land” (First Nations Sacred Sites in Canada’s Courts (2005), at p. 3 (emphasis added)). In many Indigenous religions, land is not only the site of spiritual practices in the sense that a church, mosque or holy site might be; land may itself be sacred, in the sense that it is where the divine manifests itself. Unlike in Judeo-Christian faiths for example, where the divine is considered to be supernatural, the spiritual realm in the Indigenous context is inextricably linked to the physical world. For Indigenous religions, state action that impacts land can therefore sever the connection to the divine, rendering beliefs and practices devoid of their spiritual significance. Where state action has this effect on an Indigenous religion, it interferes with a believer’s ability to act in accordance with his or her religious beliefs and practices.

[128] Taking this feature of Indigenous religions into account is therefore critical in assessing whether there has been a s. 2(a) infringement. The principle of state neutrality requires that the state not favour or hinder one religion over the other (see S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 32; Mouvement laïque québécois v. Saguenay (City),2015 SCC 16, [2015] 2 S.C.R. 3, at para. 72). To ensure that all religions are afforded the same level of protection under s. 2(a),courts must be alive to the unique characteristics of each religion, and the distinct ways in which state action may interfere with that religion’s beliefs or practices.

…

[131] This approach also risks excluding Indigenous religious freedom claims involving land from the scope of s. 2(a) protection.As indicated, there is an inextricable link between spirituality and land in Indigenous religious traditions. In this context, state action that impacts land can sever the spiritual connection to the divine, rendering Indigenous beliefs and practices devoid of their spiritual significance. My colleagues have not taken this unique and central feature of Indigenous religion into account. Their approach therefore risks foreclosing the protections of s. 2(a) of the Charter to substantial elements of Indigenous religious traditions.

[emphasis added]

Justice Moldaver cited Big M Drug Mart Ltd., stating that if the state conduct renders the religious beliefs devoid of religious significance, it constitutes an infringement of a person’s religious freedom,

[117] In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter‘s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

[emphasis added]

This unique perspective of Indigenous beliefs is what provides special spiritual significance to the Ktunaxa practices.

Despite this position, Justice Moldaver found that the Minister’s decisions were proportionate to the relevant statutory objectives, constituting a proportionate balancing, and would also dismiss the appeal.

The decision in Ktunaxa Nation will have an impact on upcoming cases on the interpretation of s. 2(a) rights, most notably in TWU. Based on the majority decision here, it would not be unreasonable to expect the Court to reject TWU’s position, on the basis that they are still free to believe and disseminate their beliefs, even if their law school is not automatically accredited. In other words, the university is free to hold their beliefs, and there is no protection in manifesting them in a manner that would provide a legal entitlement to accreditation.

Even the minority decision in Ktunaxa Nation provides some challenges to TWU. Justice Moldaver’s position was still largely focused on the unique aspects of the Indigenous beliefs related to the land, a position TWU cannot claim as part of their application. If they were able to find an infringement on the basis of the minority, they would still have to employ a reasonableness analysis under Doré v. Barreau du Québec, in particular in light of deference to the expertise and experiences of law societies.

Where TWU may have an argument is the extent to which the freedom of religion extends to a collective aspect. The joint reasons in Loyola, concurring partially in results, were authored by McLachlin C.J. and Moldaver J., who were on opposite sides in Ktunaxa Nation. In Loyola, the joint decision by the two justices appeared to provide the corporation itself religious rights,

[90] The Attorney General of Quebec contends that Loyola enjoys no such constitutional protection because it is not a natural person, but merely a legal person: religious freedom protects sincerely held beliefs, and a corporation is capable of neither sincerity nor belief. This raises the question of whether religious organizations are protected by the guarantee of freedom of religion.

[91] In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter. The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola. Canadian and international jurisprudence supports this conclusion.

This argument may still fall short in the position by the law society in Ontario around individual graduates of TWU seeking admission to the bar. The only exclusion by the law society was an automatic denial of accreditation of the school, and not the graduates. In this context, the following passages from the Divisional Court decision in TWU are particularly important to revisit,

[68] …TWU remains free to operate its law school, and persons who attend it are free to pursue their legal education within an overriding atmosphere of evangelical Christian beliefs. Graduates of TWU’s law school will have the right to become members of the Bars in those Provinces where TWU’s law school has been accredited. Indeed, as we shall explain further towards the end of these reasons, those graduates can still apply, and the respondent will be under an obligation to consider any individual application, to be accredited for membership in the Bar of Ontario…

…

[126] …there remains the possibility that TWU will proceed with its law school, notwithstanding that it has not been accredited by the respondent…

[127] We mention this possibility only to observe that, if that eventuality should occur, and as we have alluded to, individual graduates of the law school might still seek to be admitted to the Bar of Ontario. Should that situation come to pass, the respondent will be obliged to have a fair and timely process in place to evaluate and rule on those requests for admission. Apart from the conclusion regarding TWU’s application as an institution, the individual graduates have their own rights and a proper consideration of those rights requires that form of accommodation.

[128] In making that observation, we recognize that the respondent has never been asked, by either of the applicants or by anyone else, what its position would be if an individual graduate of a TWU law school made his/her own application for admission. We simply raise the issue to make it clear that the interests of individual graduates may arise at some future point and, if they do, the respondent will be duty bound to properly consider their accreditation requests, in order to ensure that the religious rights of any graduate of TWU’s law school are minimally impaired.

In light of Ktunaxa Nation, the applicants in TWU may have a much more difficult time claiming that the effect the law society’s decision has an effect on the objects of their belief, especially where individual graduates would not be necessarily impacted in the same manner. TWU is expected to go before the Court on Nov. 30-Dec. 1.